New Appeal in False Confession Case Focuses on Sex Offender Status

As a sex offender, Eric Wilson is required to register with the state police every 90 days. There are certain jobs he can’t work. Because he can’t pass a background check, he cannot adopt his wife’s 9-year-old son from a previous relationship.

But it’s highly likely that Eric Wilson wasn’t even involved in the crime — the 1997 rape and murder of Michelle Moore-Bosko — that led to his sex offender status in the first place. On Thursday, his lawyers are taking his case to the 4th U.S. Circuit Court of Appeals in Richmond, Va., where they’ll make an interesting legal argument: that his sex offender status means he’s still “in custody” of the state. If the court agrees, he can then petition to be exonerated.

Wilson is one of the “Norfolk Four,” a group of Navy men we profiled in our 2010 film The Confessions, each of whom confessed to Moore-Bokso’s murder after long interrogations — despite the lack of physical evidence linking any of them to the crime.

It wasn’t until 1999, several years after the Norfolk Four were incarcerated, that an inmate named Omar Ballard confessed that he committed the crime alone. Ballard, whose DNA matched evidence found at the scene of Moore-Bosko’s death, pleaded guilty to the rape and murder and was sentenced to two life terms.

The only evidence against the Norfolk Four were their confessions — and all four say, with ample evidence, that their confessions were coerced.

In 2009, saying he had “grave doubts” about their convictions, then-Virginia Gov. Tim Kaine granted three of the men — Joseph Dick, Derek Tice and Danial Williams — conditional pardons. Tice was officially cleared last year, while Dick and Williams continue to fight their cases in court despite recent setbacks. Both Dick and Williams, because they still have convictions on their record, are considered felons and must register as sex offenders.

Wilson wasn’t eligible for the pardon because he had already been released — unlike the other men, who pleaded guilty or were convicted of Moore-Bosko’s rape and murder — Wilson was convicted of the rape only and served eight and a half years.

In the above clip from The Confessions, Wilson, his wife, Misty, and his mother describe what his life is like now. “Once you have been convicted of this type of crime, you will be paying for it for the rest of your life,” Wilson says.

“It bothers Eric greatly that he has to go and register,” explains Ramey Wilson, Eric’s mother. “It’s an embarrassment every time he has to go because somebody sees that designation on a piece of paper. They don’t know the story, and so they think he is a predator.”

There doesn’t appear to be a legal precedent for Wilson’s appeal; the Virginia attorney general’s office told the AP that four “federal appeals courts have correctly held that a person is not in custody just because he’s on the sex offender registry.” As Senior Assistant Attorney General Virginia Theisen explained in a legal brief filed in the case:

The requirements imposed by such statutes are not punitive, but regulatory. They are enacted to protect communities and assist law enforcement. The restraints Wilson alleges are imposed on family, travel, and employment matters are not the severe restraints on liberty necessary to constitute custody.

One of Wilson’s lawyers, Stephen Northrup, told the AP that the “notion that Wilson is not in custody is ‘a pure technicality’ given his strict supervision and the many constraints on his liberty.”

A ruling is expected a few weeks after Thursday’s hearing.

Update [March 29, 2012]: During last week’s hearing, judges indicated that Wilson’s legal strategy — arguing that his sex offender status constitutes being “in custody” — was problematic. But they also hinted that he should seek other avenues to clear his name:

“It may be that your man is totally innocent,” [Judge Paul V.] Niemeyer told [Wilson attorney George] Somerville. “He certainly has a powerful claim for it. I do believe your man has to get into court somehow.”